exhibit 2 - SAP Lawsuit Portal

coming forward with evidence to show that creating an
accessible patient room was readily achievable,
defendants are under no obligation to prove the
affirmative defense that barrier removal is not readily
achievable. See Colorado Cross, 264 F.3d at 1002-07.
Nor has plaintiff established that Kaisers alternative
"facilitation" is discriminatory. Although plaintiff claims
that it is Kaisers policy to define all disabled individuals
as "confined to bed," the evidence shows that every
patient that comes into Kaiser receives an
"interdisciplinary care plan," which [*35] involves an
assessment, on admission, of a patients needs by a nurse.
Coles explains that the medical needs of every patient are
determined through this care plan, and that it is the
medical needs of the patient that dictate whether the
patient will use a commode, a bed pan, or the toilet, or
will be given a bed bath.
The evidence shows that all patients are treated
equally, in that each is evaluated based on his or her
mobility, and may then be confined to bed based on that
assessment. Based on this mobility assessment, plaintiff
was categorized a "total assist" patient with respect to
hygiene needs, and a "high injury risk" because of his
limited mobility. Because of this, he was not medically
permitted to use the toilet.
Nor was Kaisers failure to transfer plaintiff to
another facility discriminatory. First, there is no evidence
that plaintiff ever requested a transfer. Second, there is no
evidence that Kaiser Oakland had a "policy" of
transferring patients to other facilities. What plaintiff
interprets as such a policy was simply part of Kaisers
plan to move its patient populations to other facilities in
preparation for the demolition of Kaiser Oakland. Third,
defendants have [*36] provided evidence showing that
transfers, in general, are difficult and not "readily
achievable."
Plaintiffs argument regarding removal of barriers to
paths of travel is outside the scope of defendants motion.
E. Plaintiffs Motion
Case4:07-cv-01658-PJH Document875-5 Filed09/16/10 Page11 of 17
Plaintiff seeks summary judgment on his claim that
Kaiser discriminated against him by failing to provide
him with an accessible patient room, by offering him a
bed bath and a portable commode instead of a fully
accessible bathroom, and by failing to transfer him to
another facility; and his claim that Kaiser violated the
2006 U.S. Dist. LEXIS 38430, *34
Page 10
ADA and state law by failing to provide at least one fully
accessible patient room. This motion is DENIED,
because the defendants motion on the same issues has
been granted.
Plaintiff also contends that Kaiser violated the ADA
and state law by failing to provide an accessible roll-in
shower in the remodeled bathroom on the 4th floor
maternity ward, and by failing to remove architectural
barriers, in connection with parking, building entrances,
and paths of travel. Plaintiff claims that Kaiser made
millions of dollars worth of renovations and alterations to
Kaiser Oakland between 1992 and 2002, but failed to
provide accessible parking, [*37] entrances, or paths of
travel.
Plaintiff asserts, based on an analysis by his
consultant Robert Johnson ("Johnson" -- a forensic
economist), that Kaisers overall 2003 financial resources
were in excess of $ 25 billion, with net income (after
taxes and expenses) of more than $ 1 billion. Based on
these facts regarding Kaisers financial condition, and
based on Johnsons opinion that Kaiser could easily afford
the renovation, plaintiff argues that the removal of the
barriers was "readily achievable."
Plaintiff also argues that the Kaiser defendants
denied plaintiff "full and equal access" to their public
facilities in violation of Civil Code § 54.1 as a matter of
law by constructing and altering their public facilities
without providing accessible parking, entrances, and
paths of travel. He asserts that although defendants have
altered and renovated their medical facilities and parking
lots many times since 1982, the two largest patient
parking garages and the parking lot for hospital discharge
do not, as of the time of this motion, provide the disabled
with a fully compliant van-accessible parking space.
Plaintiff claims that evidence shows that Kaiser
undertook alteration and construction [*38] at Kaiser
Oakland at a cost in excess of $ 8 million dollars between
1992 and 2002, but made no provisions for accessible
parking and paths of travel. Plaintiff also asserts that the
evidence shows that Kaiser undertook a $ 9 million
construction upgrade project in several departments in the
hospital and surrounding medical buildings in 1995, and
also made alterations or renovations to the Howe Street
garage in 1995, all of which plaintiffs expert claims
triggered access not only to the altered areas, but to the
public restrooms, entrances, parking, and paths of travel
to the altered areas. Plaintiff contends that Kaiser made a